Elena Kagan's Personal Life: Does It Matter?

Watching cable-news coverage of President Obama's new Supreme Court pick, I was struck by the pundits musing over how the White House would humanize Elena Kagan. They recalled how John Roberts had his wife and young children appear with him, which made him instantly accessible to TV viewers. Obama by contrast has chosen two women who are unmarried, presenting a challenge to the White House image-makers. One conservative blogger wondered what it is about unmarried women from the boroughs of New York that holds such fascination for Obama. Sonia Sotomayor's mother and brother attended her announcement, and countless relatives were at her hearings. We also learned about a fiancée she once had, but then her career got in the way. Senate hearings focused on Sotomayor's comment that a "wise Latina woman" would more often than not reach a better decision than a white man, and her singleness became a footnote.

What we know about Kagan is that she has two brothers, both schoolteachers, and that her parents are deceased. Her father, a lawyer and activist, was her earliest and greatest influence, writes Andrea Stone of AOL News. She seems to have led a life that critics might label "careerist," in that her sights have been set since she was in grade school on becoming a judge. She even posed for her high school yearbook in robes and holding a gavel. The White House, doing its job, is touting all the warm personal relationships Kagan has with both faculty and students at Harvard, where she was dean of the law school, and how liked and admired she is by all the people she's worked with and for, from Capitol Hill to the Clinton White House to academia. To build Kagan's personal life, you might say it takes a village.

Yet the subliminal judgment being made is that she is somehow unfulfilled and less of a person because she has not married and had children. I don't believe that's the case, but for those who do, the questions they should ask themselves are: Will her marital status interfere somehow with her interpretation of the Constitution? Will it interfere with her ability to fulfill Obama's goal that she become a voice for ordinary citizens on a court that is dominated by people who reflect corporate interests by background and training?

It's more likely that any emphasis on Kagan's personal life, or lack thereof, is about tapping into the latent culture wars, and raising eyebrows about any woman (or man for that matter) who for whatever reason chooses not to marry. For feminists tempted to get into high dudgeon over such unfair treatment, I have two words: David Souter. When President Bush nominated Souter in 1990, the fact that he was a bachelor living alone in his family's farm house in New Hampshire made him a target of derision. He had never ruled on abortion cases, or expressed an opinion about reproductive rights. Feminists who questioned his suitability for the court are now on the receiving end of tactics they used when it was politically convenient.

In the end, marital status only counts for so much. Souter was confirmed by a vote of 90 to 9, with leading liberals like Ted Kennedy and John Kerry voting no, votes they would later regret as Souter became one of the strongest defenders of abortion rights and other liberal causes on the court before his retirement paved the way for Sotomayor. Kagan's turn in the spotlight is likely to have the same happy ending, and as uncomfortable as the probing might be over the next few months, she can then don that robe and retreat back to the privacy that she obviously relishes, which is the province of the high court.

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